The Ability to Speak with One Voice
Jon Wisseborn, president of the Royal Association of Judicial Officers of the Netherlands (KBvG) welcomed all delegations of the UIHJ in The Hague, the world capital of justice. He said that this permanent council coincides with the 10th anniversary of the reform of the profession in the Netherlands, an event which would be celebrated after the council.
Leo Netten, president of the UIHJ, recalled that The Hague is the seat of several global legal institutions and international organizations like the International Criminal Court or The Hague Conference on Private International Law with which the UIHJ has close relations for very many years. President Netten explained that several meetings were held prior to the Permanent Council.
Leo Netten also recalled the BERP project (Balkans Enforcement Reforms Project) lead by the Center for International Legal Cooperation (CILC) for the reform of enforcement procedures in the Balkans. The UIHJ is a partner in this project. Several UIHJ experts, including Jos Uitdehaag (the Netherlands), 1st quester of UIHJ, are actively involved. The writing of a book in which he participated and concerning enforcement in the Western Balkans has just been published. "This project allows us to show how the UIHJ is involved in the reforms that improve the effectiveness of enforcement procedures," he said. He welcomed all participants to present this project to the Permanent Council: Albania, Bosnia, Croatia, Kosovo, Montenegro, Serbia as well as FYRO-Macedonia, already a member of the UIHJ.
President Netten recalled that the UIHJ is one of the largest and most influential lawyers' organizations in the world. "We are recognized by all European and world organizations and institutions. Our biggest advantage over other organizations, often fragmented among several entities, is our ability to speak with one voice. Our message is the same, whether in Europe, Africa, Asia or America, and whatever our institutional partner. This unique strength is irreplaceable". Being a global organization the UIHJ has a considerable advantage over other regional organizations, including because of its size.
Leo Netten noticed that The Hague Conference turned to the UIHJ with regard to service of process in international affairs. The Council of Europe turned to the UIHJ for its many missions in its member states or when establishing a working group on enforcement. The UIHJ was present and participated during the opening session of the European Judicial Network in civil and commercial matters (EJN) which was established in December 2002 by the European Commission. The European Commission turned to the UIHJ when it decided to incorporate the legal professions to the EJN. The Council of the European Union turned to the UIHJ to create an electronic directory of judicial officers of the European Union. The European Commission turned to the UIHJ for its Justice Forum. The European Union turned to the UIHJ for its major project on judicial training. The European Commission turned to the UIHJ at the occasion of its consultation to improve the recovery of monetary claims within the European Union. In the working group on the project of a European attachment of bank accounts are three judicial officers members of the UIHJ, including its vice president, Roger Dujardin. The European Law Institute (ELI) turned to the UIHJ when asking the UIHJ to be a founding member of this great European organization. "We should be aware of the strength of the UIHJ, enjoy it, cherish it, and protect it as our most precious possession" continued the president of the UIHJ. "We should also bear in mind that the profession of judicial officer is much less important in terms of numbers than other legal professions. However, our effectiveness is a reality. We should avoid dissipating our actions. This would only weaken our profession and therefore weaken each judicial officer of each country of our union".
For Leo Netten, the creation of a judicial area cannot be achieved without the legal professions. “Economic crisis leads us to be more effective. We face a perpetual challenge. We should approach the other legal professions, notaries, judges, lawyers, court clerks. We could create inter-professional networks to consolidate and develop international judicial cooperation at international level. We have initiated a project to create a global week of the legal profession. Our ambition is to have this event put on the calendar of the UN. Position papers are drafted to present our views on issues relating to the profession and enforcement procedures”. The Cape Town International Congress will be held in less than a year. Its theme is "The Judicial Officer of the 21st Century." The major UIHJ project of the Global Code of enforcement will be unveiled.
Then President Netten welcomed the recent election of Presidents of Chambers Rafal Fronczek (Poland), William Cameron (Scotland), Kuran Marolt (Slovenia), and Jose Carlos Resende (Portugal). He then wished everyone a fruitful work to the 25 delegations from Europe and America.
The Ideal Portrait of the Judicial Officer
Dionysios Kriaris, board member of the UIHJ talked about the relations between the UIHJ and the European Law Institute (ELI) and the meeting he attended in Athens in April 2011 with Françoise Andrieux, general secretary of the UIHJ. ELI is inspired by the American Law Institute. He recalled the genesis of this new organization and added how important it was for the UIHJ to be one of its founding members.
Mathieu Chardon, 1st secretary of the UIHJ mentioned the Hague Conference on Private International Law. He presented a documentary made during the plenary meeting held at the Peace Palace in The Hague in April 2011. Then he said that discussions were held with the Hague Conference with regard to service of documents in international matters and especially electronically.
With regard to the Council of Europe, Mathieu Chardon recalled the work of the Working Group of the European Commission for the Efficiency of Justice (CEPEJ) in which the UIHJ participated. This working group has developed Guidelines on the recommendation adopted by the Council of Europe on 17 December 2009. He stressed that these guidelines outline the ideal portrait of the judicial officer and enforcement procedures in civil and commercial matters. The first secretary of the UIHJ reminded once again that all proposals made by the UIHJ were included in the guidelines, including the multidisciplinary programme developed at the International Congress of judicial officers in Washington DC in 2006.
Regarding the Working Group on the European attachment of bank accounts, Jeroen Nijenhuis, judicial officer (the Netherlands), a member of this working group, said that following the interventions and arguments presented by members of the UIHJ, the European Commission has recognized that the European attachment of bank accounts should only be performed by a professional jurist such as a judicial officer. He also explained the mechanism of this entry in the status of current discussions.
Françoise Andrieux, general secretary of the UIHJ, said the UIHJ-EuroMed seminar had to be postponed until October due to recent events which could not fully guarantee the safety of participants.
David Walker, Permanent Delegate of the UIHJ for the United Kingdom, gave a report of activities in England and Wales, Scotland and Ireland. In England, the enforcement reform has been in effect for two years. This reform also changed the structure of the offices of judicial officers. In Scotland, a new reform has just been completed. The Society of Messengers-at-Arms and Sheriff Officers has officially been recognised as the authority for judicial officers in Scotland. The disciplinary procedures will have more effect and there will be a greater financial stability within the association.
Finally with regard to Ireland the contacts have not been renewed. Ireland is facing a very important crisis. One can hope that our colleagues understand that it is in their interest to come back to the UIHJ.
Then it was the turn of Olof Dahnell, Permanent Delegate of the UIHJ for the Scandinavian countries, to give an overview of the situation in Denmark, Finland, Norway and Sweden.
Norway will hold in Bergen in September a seminar bringing together the Scandinavian countries in the area. In Denmark, a new file of the debtors will be set up in 2011. This file will allow judicial officers to have information on debtors at national level. Since 1st January 2011, the judicial officers can now perform evictions. In Finland, we should welcome the positive results achieved by our colleagues, said Olof Dahnell. Finally, for Sweden, the new organization of the judicial officers will be operational on 1st December 2011. Sweden is involved in a project with Georgia. Several seminars were held and a Code of Ethics is being developed. The project will last for two years.
Protecting the Rights of Debtors and Children
Sue Collins, member of the board of the UIHJ referred to the recent congress of NAPPS (National Association of Professional Process Servers) in San Antonio and the election of its new president. In some States, process servers cannot serve anything. The documents have to be served by the sheriffs. NAPPS is going to these States which are very restricted and try to loosen up the laws so that a private company can serve some of the papers. In general in all 50 States, the Process Servers can only do the lower level papers where there is no property taken, no money seized. After judgment, the sheriff office generally does that. The idea is to relieve the sheriffs' offices from some of the papers. The National Sheriffs Association (NSA) is holding its conference right now in Saint-Louis. Sue Collins sits at the board at the national conference and represents the UIHJ. The board is a combined committee which oversees jail, prisoners' transports and civil process. But it took her three years to add civil process to a committee. Before that there was nothing on the agenda regarding civil process even if it represents the third of what their offices do. The UIHJ has been invited to do some type of training seminar for one of the next convention. Some of the sheriffs mostly in Florida and California are stopping the work of civil process. They want to hire a private process server to do it for them. NAPPS is trying to have more sheriffs' offices do the same. However the sheriffs still have to seize and sell the properties. E-service of document is not happening at the present time but it is interesting for NAPPS to look into that. Finally, in 2010 Louisiana changed their State Law. In New Orleans there used to be a civil sheriff and a criminal sheriff. Now there is no such thing as a civil sheriff in the United States anymore.
Then Mathieu Chardon presented the activity report of the UIHJ since the Permanent Council in November 2010. Marc Schmitz (Belgium), Quester of the Committee, gave an account of the second international conference on theoretical and practical efficiency of the execution of court decisions held in Kazan (Russian Federation) from 7 to June 12, 2011. The conference was organized by the Federal Service of Judicial officers of the Russian Federation in cooperation with the University of Kazan. The UIHJ was represented by Mark Schmitz and Carlos Calvo, president of the Chamber of Judicial officers of the Grand Duchy of Luxembourg. Many delegations from Eastern and Western Europe were present. The subjects were also on ethics, protecting the rights of debtors, seeking information on the debtor's assets, electronic auction and mediation. Respect of the rights of children was also a central issue. Marc Schmitz took the opportunity to thank Artur Parfenchikov, Director of Federal judicial officers of the Russian Federation for having hosted and organised this conference.
Meeting with the Minister of Justice of Chile
Dominique Aribaut-Abadie, treasurer of the board of the UIHJ, said she had visited Chile in February 2011 with President Netten and Patrick Sannino, treasurer of the National Chamber of judicial officers of France, at the request of the Minister of Justice of Chile. This meeting was initiated by the late Rodrigo Zuniga, who sadly died a few days after the meeting, as announced by our colleague, who was strongly saddened by this news. During the meeting, Leo Netten introduced the UIHJ, its activities, its links with international organizations and the CEPEJ Guidelines. Dominique Aribaut-Abadie presented the work of the judicial officer while Patrick Sannino presented the pyramidal organisation of the profession of judicial officer in France. A second meeting was held with the judiciary and members of the Department of Justice. This meeting was very lively and pragmatic. The Minister of Justice of Chile expressed his wish to travel to France for a study visit. This visit took place at the end of May, including in the Office of Dominique Aribaut and at the head of the National Chamber of Judicial officers of France where the Minister met with the presidents of the UIHJ, the National chamber of France and the National School of Procedure of Paris (ENP). Leo Netten offered the services of UIHJ experts. French and ENP Presidents have also offered their help.
A workshop was then held on assaults on judicial officers. The workshop was led by Françoise Andrieux. The speakers were an advisor to the Ministry of Interior of The Netherlands, Karen Weisfeld (Netherlands), Marc Jouglet (France), Ellin Vilippus (Estonia) and Dionysios Kriaris. Stakeholders were able to realize that attacks against judicial officers and their employees are too frequent. In particular our colleague Marc Jouglet recounted the very violent assault which he suffered with his assistant a few months ago and to which he could escape only by his calm and his professionalism. He said the experience had a profound impact on him. Several speakers also gave details on their personal experience.
At the end of the workshop wishes to emphasize the need to apply sanctions to match the severity of assaults the judicial officers are too often victims of were issued.
A Rich European Review of Case Law and Legislation
Jos Uitdehaag (The Netherlands) then gave an account of his activities in the many countries where he deploys its expertise. In the Western Balkans, several projects are underway, notably through the BERP project.
Following him, Guillaume Payan, UIHJ consultant, lecturer at the University of Maine (France), presented the current European case law and legislation.
With regard to case law, the citizenship requirement for notaries has been the object of six decisions of the Court of Justice of the European Union (ECJ). This ruling could have an impact on the profession of judicial officer. Six countries were involved: Austria, Belgium, France, Germany, Greece and Luxembourg. The European Commission considered that these countries had breached their duty concerning freedom of establishment. Access to the profession of notary is a condition of citizenship in those States. For the European Commission, this requirement violates Articles 43 and 45 of the Treaty establishing the European Community. For the ECJ, if notaries are involved in the exercise of public authority, the intensity of this participation is not sufficient to justify the nationality requirement. The ECJ considers that the derogation of Article 45 should be restricted to those activities that constitute a direct and specific exercise of public authority. "What is the scope of this decision for the judicial officers?" asked Guillaume Payan. These decisions concern only the nationality requirement. For him, the exercise of public authority, enforcement or coercion by a profession can justify a limitation on freedom of establishment.
Mr Payan then referred to the resolution of 10 May 2011 of the European Parliament on European attachment of bank accounts and the transparency of assets. The European Union raised the prospect of a programme of the European institutions in the field of enforcement for several years. If no action has materialized yet, a legislative proposal is scheduled for July 2011 with regard to the attachment of bank accounts. For the transparency of assets, the European Commission should act in 2013.
In the resolution of 10 May 2011, Parliament set out 17 recommendations for these two topics. Among the common recommendations, the European Parliament wants to see the creation of two separate regulations. The idea is to create uniform procedures on the model of the European Order for Payment: uniform procedures limited to cross-border disputes overlapping with national procedures, on the basis of Article 81 of the Treaty on the Functioning of the European Union. The courts with jurisdiction to authorize the measures would be those covered by the Brussels I Regulation.
With respect to specific provisions in the attachment of bank accounts, the order of attachment of bank accounts is considered in a purely provisional phase. The Parliament raised the possibility of extending the measure to immovable. The procedure should be non-contradictory, the debtor been notified at a later stage. The attachment order should be adopted before, during or after the proceedings on the merits. The court should be able to limit the temporal effects of the seizure and the amount liable to the amount of the claim. The bank should immediately give the result of the seizure. An appeal by the debtor should also possible.
Finally, as regards the transparency of assets, specific recommendations are less precise, the procedure being not envisaged until at least 2013. The order of transparency of assets may be requested where the applicant has a way of establishing a right of claim. Otherwise, the Parliament is reserved. The order once obtained, may be enforced in all member countries of the European Union. It is also recommended that the defendants be required to disclose all their assets. Sanctions should be provided in case of misrepresentation.
Guillaume Payan also referred to the European directive of February 2011 concerning the fight against late payments in commercial transactions in the EU. It replaces the previous directive of 2000. The creditor must have fulfilled all his obligations and have not received payment for his services of a commercial nature (providing goods or services).
The 2011 Directive enhances the protection of European creditors. Two broad categories of measures are planned. One concerns the measures under the law of contract. The other concerns the private judicial law. With regard to contract law, it is possible to provide a reservation of ownership. It is also possible to provide interest for late payment. Finally, the directive deals with unfair terms limiting the compensation of the creditor in case of late payment. Regarding the private judicial law, there are two categories of measures: those relating to compensation of creditors for the recovery costs and those relating to recovery procedures for uncontested claims.
Ten Essentials Components of the Tariff
Françoise Andrieux gave an account of the activities of the Scientific Council of the UIHJ. One of its emerging and most important topics is the development of the Global Code of Enforcement. Work is placed under the direction of Natalie Fricero, professor at Law at the University of Sofia-Antipolis (France). The work is in the preparatory stage. For now the emphasis is on the methodology to be adopted and the contents of this code. The work will be presented at the international congress in Cape Town in May 2012.
The general secretary of the UIHJ continued on the topic of training. In April 2011 was held the European training day in Budapest (Hungary). Françoise Andrieux thanked the National Chamber of Judicial officers of Hungary for hosting the event in the actual theatre of the Hungarian Chamber. It was the Fourth European Training Day. Two workshops were held as well as the European review of case law and legislation. The first workshop concerned e-Justice. The second workshop involved the recovery of maintenance in the European Union countries. A questionnaire was sent to all European members of the UIHJ on training. A position paper on training has been prepared on the basis of answers to this questionnaire.
Following her Dionysios Kriaris spoke of the working group in which he participated and organised by the European Commission on judicial training in the European Union.
Through the example of cross-border recovery of maintenance claims, and based on the book he recently wrote on the issue, Bernard Menut, first vice-president of the UIHJ promoted the idea that the judicial officer is the only professional capable of enforcing an enforceable title and to collect monies in each country, across Europe and beyond, around the world .
Bernard Menut presented the work he directs on tariff which has been commanded by the UIHJ. He said the purpose of the study is not to say what should be the tariff of judicial officers in each state, but to define the framework of the tariff of judicial officers. He said that there are three sources. The first source is found in Recommendation Rec (2003) 17 of 9 September 2003 of the Council of Europe on enforcement. Then there are the Guidelines of 17 December 2009 for the implementation of this recommendation. This document contains a lot of information on the cost and expenses related to enforcement. The third source is the national legislation. The study shows that the situation is very different from state to state. In France for example, the tariff is extremely detailed. In other countries, the tariff contains only a handful of items. For the first vice president, the tariff of judicial officers should include ten key points: price list, fees for drafting/service - enforcement / Management, Additional copies, transportation costs, performance fees, allocation of costs, retaining fees, negotiation of fees, indexation, and dispute about fees.
Bernard Menut said a position paper would be drawn on the basis of the on-going work.
An Automated Information System
Mathieu Chardon informed the participants of the communication actions of the UIHJ. The First Secretary mentioned the last Newsletter of the Union, the new brochure of the UIHJ and the new brochure on the European section of the UIHJ. UIHJ-Magazine # 26 has just been published. He also mentioned the renovated site of the UIHJ, with a new look and especially a more elaborate architecture.
Sue Collins then explained that the sponsoring committee of the UIHJ she heads aims to find ways to finance some of our actions through advertising revenue with partners, or sponsors.
Louis-Raymond Maranda (Canada), member of the board of the UIHJ, reported the World Day of the judicial officer in Quebec.
Then the heads of delegations having made the request presented their interventions. Artur Parfenchikov, director of the Federal Service of Enforcement of the Russian Federation, took the floor to present the progress of the profession of judicial officer in his country. Commenting on the recent international seminar of Kazan, already mentioned by Marc Schmitz, M. Parfenchikov said it was necessary to facilitate the judicial officers with access to information on debtors and that legislative changes were to move in that direction. He also said that the Federal Service of Enforcement is very interested in new technologies and to install an automated information system.
He also said that the educational level of Russian judicial officers and their staff should rise. Several training centres are being created. Director Parfenchikov also referred to the World Day of the judicial officer. The Russian Federation was particularly sensitive to the theme, "The judicial officer and the recovery of maintenance." He said a million child support cases were treated in 2010. He also said that many actions of the Federal enforcement are conducted in the favour of children.
Over fifty orphanages are under the patronage of the Federal Service of Enforcement. He finally announced the organization next year of the third theoretical and practical international seminar. He gave President Netten a letter of congratulations for the participation of the UIHJ in the second seminar, « hoping that this letter of greetings will take a worthy place in a museum of the UIHJ ».
Nika Melia, director of the National Bureau of Enforcement (NBE) of Georgia, made a full presentation of the service he runs. The NBE is clearly a model of efficiency and modernity. Georgian judicial officers can carry out all civil enforcement procedures. In particular they may conduct auctions and real estate securities, including by electronic means. The NBE has its own budget with which it finances the construction of its premises. To enable everyone to actually judge, Mr Melia has invited all colleagues to attend the international conference organized by the NBE to be held in Batumi on September 28 to 30, 2011.
Bernard Menut gave an account of work that led amending the statutes. He noted that on-going work will be proposed to the Permanent Council in November 2011 and will be proposed for vote in Cape Town in May 2012.
Dominique Aribaut made a finance report of the UIHJ. Virtually all contributions were recorded. More than 300 Club cards were sold. Our colleague pointed out the advantages of the card club, such as discount for events organized by the UIHJ, the UIHJ-magazine and references of the judicial officer in the directory of the judicial officers on the site of the UIHJ.
The Grand Questionnaire of the UIHJ
Johan Fourie, board member of the UIHJ, briefed the participants on the progress of the organisation of the congress in Cape Town. Then Mathieu Chardon gave an overview of the Congress in Cape Town. He said that on this occasion, a grand questionnaire was being prepared and would be sent to all members of the UIHJ. This grand questionnaire will gather unprecedented and highly accurate information on all aspects of the profession of judicial officer. This questionnaire will be analysed and presented in Cape Town.
Honoré Aggrey, vice president of the UIHJ, presented the project of the Organization for the Harmonization of Business Law in the Caribbean (Ohadac). This project is inspired by Ohada in Africa. It aims to establish and strengthen interregional cooperation to weld the economies of the partner states while creating trust. The UIHJ intends to position itself in this great project.
After referring to future events, President Netten ended the permanent council. He thanked all delegations and gave them an appointment in November for the next permanent council in Paris, then in Cape Town for the 21st International Congress of judicial officers. The following day, the KBvG celebrated the 10th anniversary of the reform of the status of the profession of judicial officer in the Netherlands, in the presence of Hans van Loon, Secretary General of the Hague Conference on Private International Law and the State Secretary for Justice of the Netherlands. Leo Netten and members of the board of the UIHJ and many delegations naturally participated in this great event.
